Law

12:45 pm

Sat June 1, 2013

Court Prepares To Write New Chapters In Civil Rights History

The Supreme Court is set to deliver opinions in cases involving affirmative action, the voting rights law and same-sex marriage.

Jonathan Ernst Reuters /Landov

It's not unusual for the Supreme Court to find itself at the center of roiling national debates.

But this month, justices are poised to deliver blockbuster opinions involving three of the most divisive issues in the public arena. And in doing so, they will write new and potentially groundbreaking chapters in America's civil rights story.

Affirmative action. Voting rights law. Same-sex marriage.

By June's end, Americans will know if and how public colleges and universities may administer programs designed to enroll more minority students.

Whether a key 1965 Voting Rights Act provision will survive, and with it federal monitoring of places with histories of discriminatory voting practices.

And if congressional action barring federal recognition of same-sex marriage is constitutional, and similar state restrictions enforceable.

"It is fascinating to see the court right smack in the middle of the hottest political controversies in the country," says Stephen Wermiel, a court and constitutional law expert, "albeit deciding their legal dimension, but with extraordinary societal ramifications."

Indeed, the court will weigh in at a time when national sentiment is in transition. The public is increasingly supportive of same-sex marriage. African-Americans are voting in percentages that rival their white counterparts. And race-based admission programs are continuing to fall out of public favor.

"These [cases] really go to the heart of who we are as a country, and the things that divide us as a country," says Wermiel, law school professor at American University and biographer of the late Justice William Brennan.

"As de Tocqueville wrote," he says, referring to the 19th century French thinker and author of Democracy in America, "every political issue in America ends up as a legal issue."

Who Are We?

Predicting how justices will rule is a dicey business (think Obamacare, upheld by a divided court just a year ago, and Chief Justice John Roberts' deciding vote to uphold). Conventional wisdom has coalesced around most-expected scenarios, given the court's makeup and the tenor of questions justices posed during arguments earlier this year.

There is speculation that the conservative court, typically divided 5-4 along ideological lines, will diminish the ability of public colleges and universities to use race as a favoring factor in enrollment. And that it will hem in the federal government's ability to monitor voting practices in specific jurisdictions — mostly in the South.

But while the court may be poised to curtail those programs, born of the civil rights movement and efforts to mitigate the cultural ravages of slavery and discrimination, it also seems ready to expand federal, if not state, marriage recognition to same-sex couples.

"This would confirm the court's willingness to play a central role in American life," says Jeffrey Rosen, law school professor at George Washington University and new head of the National Constitution Center in Philadelphia.

The court, Rosen says, has never before confronted marriage equality so squarely, while at the same time contemplating the prospect of what he characterized as "truly restrictive" action on affirmative action and voting rights.

That expected — emphasis on "expected" — outcome, he says, would underscore the influence of Justice Anthony Kennedy, part of the court's conservative majority but a past swing vote on decisions that advanced the rights of gay Americans.

"The decisions under this scenario would reaffirm the Kennedy court, rather than the Roberts court, as the central dynamic among the justices," Rosen says.

If the court does strike down the Defense of Marriage Act, the legislation banning federal recognition of gay marriage, gay couples married in the dozen states where it's legal would have the same federal rights as heterosexual couples.

The Progressive Court Recedes

Linda Greenhouse, a Yale Law School lecturer and former New York Times Supreme Court reporter, views the changes expected out of this month's decisions as part of a decades-long move away from the progressivism embodied by the late Justices Brennan and Thurgood Marshall, both of whom retired in the early 1990s.

They were "the last true liberals on the Supreme Court," she said recently during a speech at Harvard, "the last who sought to harness the Constitution as an engine of social progress."

Greenhouse said that the question now is whether that liberal progressivism and its ideals will persevere or be seen as a "fading historic moment."

"Which," she asks, "is the true American story?"

It's likely that the court will end up issuing a complicated, nuanced answer to that question, not a single, central-themed message about civil rights.

"They may thoughtfully, carefully decide what's outlived its usefulness," says Wermeil, the Brennan biographer, "and what is just beginning a new life."